Who owns your LinkedIn content? As described in my last blog post, the battle over who owns social media content, and particularly LinkedIn connections and any other social media “customer” list, has yet to come. LinkedIn content will likely be where employers and companies may have a financial motivation to fight for the content, depending on how the social media content was used in the course of business.
The Eagle v Morgan et al decision came out in March, and is one of the few cases to date that provides some insight as to where the courts may go on social media content. This is a Pennsylvania case, but some of the underlying legal concepts may be applicable in Canada, albeit not as a direct precedent.
For a full review of the facts, see Sara Hutchins Jodka's summary on the Employer Law Report blog. For some good analysis about the case, Daniel Schwartz has discussed the case a couple of times in his blog, Connecticut Employment Law Blog.
As with most law, the case turned on its particular facts:
- Dr. Linda Eagle co-founded her banking education company and she was a key sales generator and face of the company;
- She provided her staff with her LinkedIn password, and directed them to maintain her LinkedIn account, including updating content, responding to messages, and expanding connections;
- The company heavily used senior executive LinkedIn accounts to expand the company’s network and to generate business;
- Dr. Eagle and her co-founders sold the company in October 2010, but stayed on as employees until they were terminated by the new owners the following June 2011; and
- Immediately upon termination, the company changed Dr. Eagle’s LinkedIn password, replaced her photo with that of her replacement, and changed most but not all content.
Needless to say, Dr. Eagle was ticked. She gained access to her account within a number of weeks, but only by going through LinkedIn directly.
Dr. Eagle sued her past employer for a long list of claims, winning on the following:
- unauthorized use of name
- intrusion upon seclusion by appropriation of identity
- tort of misappropriation of publicity.
For most of us mortals, we’re simply not important enough to have any sort of celebrity name that can be misappropriated for any monetary value. In this case, however, Dr. Eagle remains a leader in her field and organizations hire her for her unique skills.
The bittersweet twist in this case is that while Dr. Eagle successfully proved her first three claims, the court held that she had not established any monetary damages, and was therefore awarded $0. Although she did prove her point that the company misbehaved very badly, it is a rather hallow victory.
So who owns social media content? The Eagle case suggests that the owner of the LinkedIn profile does, even when that owner expressly directs the company’s staff to maintain and develop some of the content.
The company had unsuccessfully counter-sued Dr. Eagle, arguing that her LinkedIn connections belonged to the company. Similar to the types of arguments put forth in Phonedog, those connections are already in the public domain, making the proprietary claim a bit of a stretch.
This is why social media connections are not simply a Rolodex to which the employer can claim ownership. Social media connections/followers/friends are not particularly private, confidential or even unique. It’s a collection of relationships, which may or may not be directly related to the employer, even if the employer’s staff has developed many of those connections.
We’ve now seen a move in the law towards recognizing who may own the content, and in the absence of crystal clear employer policies, it will likely be the employee.
What remains to be seen is how to commodify content and relationships. Who cares who owns the content and relationships if they are legally worth $0. Most of us, however, have a gut feeling the value is a good deal more than $0. Social media isn’t just social – it’s business too.